Nos cv (L), cv (xap), cv (xap), cv (xap), cv (con), cv (con)

Transcription

1 cv (L) Nos cv (L), cv (xap), cv (xap), cv (xap), cv (con), cv (con) UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT UNITED STATES OF AMERICA, Plaintiff Appellee Cross-Appellant, JANET CALDERO, CELIA I. CALDERON, MARTHA CHELLEMI, SALIH CHIOKE, ANDREW CLEMENT, KRISTEN D ALESSIO, LAURA DANIELE, CHARMAINE DIDONATO, DAWN L. ELLIS, MARCIA P. JARRETT, MARY KACHADOURIAN, KATHLEEN LUEBKERT, ADELE A. McGREAL, MARGARET McMAHON, MARIANNE MANOUSAKIS, SANDRA D. MORTON, MAUREEN QUINN, HARRY SANTANA, CARL D. SMITH, KIM TATUM, FRANK VALDEZ, and IRENE WOLKIEWICZ, Intervenors Appellees Cross-Appellants, (Caption continued inside cover) Appeal from the United States District Court for the Eastern District of New York BRIEF OF INTERVENORS-APPELLEES PEDRO ARROYO ET AL. NAACP Legal Defense & Educational Fund, Inc. John Payton, Director-Counsel Debo P. Adegbile Matthew Colangelo Joy Milligan 99 Hudson Street, 16th Floor New York, NY Joshua Civin 1444 I Street, NW, 10th Floor Washington, DC 20005

2 (Continuation of caption) PEDRO ARROYO, JOSE CASADO, CELESTINO FERNANDEZ, KEVIN LaFAYE, STEVEN LOPEZ, ANIBAL MALDONADO, JAMES MARTINEZ, WILBERT McGRAW, SILVIA ORTEGA DE GREEN, and NICHOLAS PANTELIDES, Intervenors Appellees v. JOHN BRENNAN, JAMES G. AHEARN, SCOTT SPRING, and DENNIS MORTENSEN, Intervenors Appellants Cross-Appellees, NEW YORK CITY DEPARTMENT OF EDUCATION, CITY OF NEW YORK, MARTHA K. HIRST, Commissioner, New York City Department of City Administrative Services, NEW YORK CITY DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES, Defendants Appellees. No cv (con) JOHN BRENNAN, JAMES AHEARN, SCOTT SPRING, DENNIS MORTENSEN, JOHN MITCHELL, and ERIC SCHAUER, Plaintiffs Appellants, v. ATTORNEY GENERAL OF THE UNITED STATES, ASSISTANT ATTORNEY GENERAL OF THE UNITED STATES FOR CIVIL RIGHTS, U.S. DEPARTMENT OF JUSTICE, NEW YORK CITY DEPARTMENT OF EDUCATION, CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES, MARTHA K. HIRST, Commissioner, New York City Department of City Administrative Services, Defendants Appellees, (Caption continued on next page)

3 (Continuation of caption) JANET CALDERO, CELIA I. CALDERON, MARTHA CHELLEMI, SALIH CHIOKE, ANDREW CLEMENT, KRISTEN D ALESSIO, LAURA DANIELE, CHARMAINE DIDONATO, DAWN L. ELLIS, MARCIA P. JARRETT, MARY KACHADOURIAN, KATHLEEN LUEBKERT, ADELE A. McGREAL, MARGARET McMAHON, MARIANNE MANOUSAKIS, SANDRA D. MORTON, MAUREEN QUINN, HARRY SANTANA, CARL D. SMITH, KIM TATUM, FRANK VALDEZ, and IRENE WOLKIEWICZ, Intervenors Appellees, PEDRO ARROYO, JOSE CASADO, CELESTINO FERNANDEZ, KEVIN LaFAYE, STEVEN LOPEZ, ANIBAL MALDONADO, JAMES MARTINEZ, WILBERT McGRAW, SILVIA ORTEGA DE GREEN, and NICHOLAS PANTELIDES, Intervenors Appellees. No cv (con) RUBEN MIRANDA, Plaintiff Appellant, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant Appellee.

4 TABLE OF CONTENTS Table of Contents... i Table of Authorities... iii Preliminary Statement...1 Jurisdictional Statement...3 Statement of Issues Pertinent to the Arroyo Intervenors...4 Statement of the Case...5 Statement of the Facts...8 Summary of the Argument Argument I. Standard of Review II. The permanent appointments and retroactive seniority received by the Arroyo Intervenors are lawful under Title VII A. There is no dispute of material fact regarding the existence of a manifest racial imbalance in the Custodian and Custodian Engineer workforces The district court properly relied on evidence of discrimination in the challenged exams Overwhelming evidence of an imbalance of blacks and Hispanics employed as Custodians and Custodian Engineers compared to their representation in the applicable labor force supports the district court s holding B. The carefully circumscribed award of permanent appointments and retroactive seniority to the Arroyo Intervenors did not unnecessarily trammel the interests of incumbent employees i

5 C. The district court properly held that remedies in a Title VII settlement are not limited to make-whole relief III. The permanent appointments and retroactive seniority received by the Arroyo Intervenors are lawful under the Fourteenth Amendment A. Race-conscious relief is supported by a compelling interest in remedying the effects of prior discrimination A prima facie Title VII disparate impact violation provides a compelling interest in race-conscious remedial action The relief provided by the Agreement is justified by additional evidence that supports a compelling remedial interest in remedying prior discrimination B. The grant of permanent appointments and retroactive seniority to the Arroyo Intervenors was a limited, one-time adjustment for qualified employees and was therefore narrowly tailored IV. The Brennan Intervenors challenge to the Hispanic ethnicity of three of the Arroyo Intervenors should be rejected Conclusion ii

6 TABLE OF AUTHORITIES Cases Acha v. Beame, 531 F.2d 648 (2d Cir. 1976) Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995)... 42, 56 Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975)... 49, 55 Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974)...45 Arlinghaus v. Ritenour, 622 F.2d 629 (2d Cir. 1980)...30 Association Against Discrimination in Employment, Inc. v. City of Bridgeport, 647 F.2d 256 (2d Cir. 1981)...39 Association Against Discrimination in Employment v. City of Bridgeport, 594 F.2d 306 (2d Cir. 1979)...39 Barhold v. Rodriguez, 863 F.2d 233 (2d Cir. 1988)... 44, 53, 58 Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001)...46 Brennan v. New York City Board of Education, 260 F.3d 123 (2d Cir. 2001)... 6, 16, 36 Bush v. Vera, 517 U.S. 952 (1996) Bushey v. New York State Civil Service Commission, 733 F.2d 220 (2d Cir. 1984)...27 Chance v. Board of Examiners, 534 F.2d 993 (2d Cir. 1976) City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) , 53, 60 Cotter v. City of Boston, 323 F.3d 160 (1st Cir. 2003)... 52, Crumpton v. Bridgeport Education Association, 993 F.2d 1023 (2d Cir. 1993)...43 Davis v. City of San Francisco, 890 F.2d 1438 (9th Cir. 1989)... 27, 48 Donaghy v. City of Omaha, 933 F.2d 1448 (8th Cir. 1991)... 41, 48, 60 iii

7 Drax v. Reno, 338 F.3d 98 (2d Cir. 2003)...30 Edwards v. City of Houston, 78 F.3d 983 (5th Cir. 1996) (en banc)...52 Edwards v. City of Houston, 37 F.3d 1097 (5th Cir. 1994) EEOC v. Joint Apprenticeship Committee, 186 F.3d 110 (2d Cir. 1999)...32 Ensley Branch, NAACP v. Seibels, 31 F.3d 1548 (11th Cir. 1994)...53 Espinoza v. Farah Manufacturing Co., 414 U.S. 86 (1973)... 63, 65 Firefighters Local Union No v. Stotts, 467 U.S. 561 (1984)...37 Florida v. Alen, 616 So. 2d 452 (Fla. 1993)...65 Franks v. Bowman Transportation Co., 424 U.S. 747 (1976)... 42, 45 Griggs v. Duke Power Co., 401 U.S. 424 (1971)...11, 29, 44, 49, 50-51, 64 Grutter v. Bollinger, 539 U.S. 306 (2003)...43 Guardians Association of New York City Police Department, Inc. v. Civil Service Commission, 630 F.2d 79 (2d Cir. 1980)... 44, 47, Higgins v. City of Vallejo, 823 F.2d 351 (9th Cir. 1987)... 30, 34 Howard v. McLucas, 871 F.2d 1000 (11th Cir. 1989)... 48, Howard v. McLucas, 671 F. Supp. 756 (M.D. Ga. 1987)...48 In re Birmingham Reverse Discrimination Employment Litigation, 20 F.3d 1525 (11th Cir. 1994)...52 In re Employment Discrimination Litigation Against Alabama, 198 F.3d 1305 (11th Cir. 1999)...50 International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977)... 28, 31, 38, 42, 50 Isabel v. City of Memphis, 404 F.3d 404 (6th Cir. 2005)...54 Jana-Rock Construction, Inc. v. New York State Department of Economic Development, 438 F.3d 195 (2d Cir. 2006)...60 iv

8 Johnson v. De Grandy, 512 U.S. 997 (1994)...46 Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616 (1987) , 34, 36, 38, 40, 57 Kirkland v. New York State Department of Correctional Services, 711 F.2d 1117 (2d Cir. 1983) , 27, 41, 48, 54-55, 61 Kohlbek v. City of Omaha, 447 F.3d 552 (8th Cir. 2006)...47 Kokkonen v. Guardian Life Insurance Co. of America, 511 U.S. 375 (1994)...41 Kolstad v. American Dental Association, 527 U.S. 526 (1999)...51 Lanning v. Southeastern Pennsylvania Transportation Authority, 181 F.3d 478 (3d Cir. 1999)...54 League of United Latin American Citizens (LULAC) v. Perry, 548 U.S. 399 (2006) Local 28 of the Sheet Metal Workers International Association v. EEOC, 478 U.S. 421 (1986)...35 Local No. 93, International Association of Firefighters v. City of Cleveland, 478 U.S. 501 (1986)... 2, 24, 36-40, 51 Lott v. Westinghouse Savannah River Co., 200 F.R.D. 539 (D.S.C. 2000)...59 Major League Baseball Properties, Inc. v. Salvino, Inc., 542 F.3d 290 (2d Cir. 2008)...31 Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)...59 Michigan Road Builders Association, Inc. v. Milliken, 834 F.2d 583 (6th Cir. 1987)...47 Monell v. New York City Department of Social Services, 436 U.S. 658 (1978)...46 National Awareness Foundation v. Abrams, 50 F.3d 1159 (2d Cir. 1995)...23 v

9 Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (2003)...47 Okruhlik v. University of Arkansas, 255 F.3d 615 (8th Cir. 2001)...50 Paganucci v. City of New York, 993 F.2d 310 (2d Cir. 1993)...48 Paganucci v. City of New York, 785 F. Supp. 467 (S.D.N.Y. 1992)...48 Paradise v. Prescott, 767 F.2d 1514 (11th Cir. 1985)...40 Peightal v. Metropolitan Dade County, 26 F.3d 1545 (11th Cir. 1994)... 32, 65 Peightal v. Metropolitan Dade County, 940 F.2d 1394 (11th Cir. 1991) People Who Care v. Rockford Board of Education, 111 F.3d 528 (7th Cir. 1997)...47 Robinson v. Metro-North Commuter Railroad Co., 267 F.3d 147 (2d Cir. 2001)... 28, 55 Rothe Development Corp. v. United States Department of Defense, 262 F.3d 1306 (Fed. Cir. 2001) Segar v. Smith, 738 F.2d 1249 (D.C. Cir. 1984)...28 Stuart v. Roache, 951 F.2d 446 (1st Cir. 1991) Tangren v. Wackenhut Services, Inc., 658 F.2d 705 (9th Cir. 1981) Tennessee v. Lane, 541 U.S. 509 (2004)...47 United States v. City of Hialeah, 140 F.3d 968 (11th Cir. 1998)...41 United States v. New Jersey, 75 Fair Empl. Prac. Cas. (BNA) 1602 (D.N.J. 1995)...48 United States v. Paradise, 480 U.S. 149 (1987)... 56, 59 United States v. Secretary of HUD, 239 F.3d 211 (2d Cir. 2001)...56 United States v. Starrett City Associates, 840 F.2d 1096 (2d Cir. 1988)...57 United Steelworkers of America v. Weber, 443 U.S. 193 (1979) , 28, vi

10 Waisome v. Port Authority of New York & New Jersey, 948 F.2d 1370 (2d Cir. 1991)... 25, 61 Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989)...32 Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988)... 11, 49, 50 Wessman v. Gittens, 160 F.3d 790 (1st Cir. 1998)...47 Wilder v. Bernstein, 49 F.3d 69 (2d Cir. 1995)...37 Wygant v. Jackson Board of Education, 476 U.S. 267 (1986)... 43, 51, 53 Statutes, Rules, and Regulations 28 U.S.C U.S.C U.S.C U.S.C C.F.R C.F.R (A) C.F.R (B) C.F.R (D)... 25, C.F.R (H) U.S.C. 1973(a) U.S.C. 2000e U.S.C. 2000e-2(a)... 11, U.S.C. 2000e-2(h) U.S.C. 2000e-2(k)... 11, 29, 44, 49, 52, U.S.C. 2000e-2(n)...41 vii

11 42 U.S.C. 2000e-5(f)(3) U.S.C. 2000e-6(b)...3 Fed. R. App. P. 4(a)(1)(B)...3 Fed. R. App. P. 30(c)...3 Fed. R. Civ. P. 23(a)(4)...59 Fed. R. Civ. P. 24(a)(2)...36 N.Y. Civ. Serv. Law 56 (McKinney 2008)...9 N.Y. Civ. Serv. Law 61(1) (McKinney 2008)...9 N.Y. Civ. Serv. Law 65(1) (McKinney 2008)...9 N.Y. Civ. Serv. Law 65(2) (McKinney 2008)...34 N.Y. Civ. Serv. Law 80(1) (McKinney 2008)...18 N.Y. Comp. Codes R. & Regs. tit. 4, 3.6 (2009)...9 N.Y. Comp. Codes R. & Regs. tit. 4, 4.1 (2009)...9 Other Authorities Amended Consent Decree, Vanguards of Cleveland v. City of Cleveland, No. C (N.D. Ohio Jan. 31, 1983) Cong. Rec (1964) Lex K. Larson, Employment Discrimination 62.04[2] (2d ed. 2008)...27 Gerardo Marin & Barbara VanOss Marin, Research with Hispanic Populations (1991)...65 Petition for Writ of Certiorari, Local No. 93, International Association of Firefighters v. City of Cleveland, No (filed June 19, 1985)...37 viii

12 PRELIMINARY STATEMENT Custodian and Custodian Engineer positions in New York City public schools are highly desirable jobs. These permanent civil service positions offer good pay, benefits, and job security, as well as extensive supervisory and operational opportunities. Yet, the New York City Board of Education has historically denied employment to minorities in these jobs, and as of the mid-1990s blacks and Hispanics held less than 8% of permanent positions, compared to their representation in the qualified labor pool of nearly 45%. Three civil service exams that the Board administered in 1985, 1989, and 1993 to screen job applicants had a severe adverse impact on black and Hispanic candidates and perpetuated this longstanding occupational segregation. The history and persistence of racial discrimination in this job category prompted the United States to initiate a lawsuit against the City in 1996, alleging that the use of the three civil service exams violated Title VII of the Civil Rights Act of The gross disparities in the challenged exams established an uncontested prima facie case of a Title VII disparate impact violation against blacks and Hispanics, and analysis from the federal government s experts raised 1 The federal government s lawsuit also alleged that the City s recruitment practices for Custodians and Custodian Engineers violated Title VII by excluding women and minorities. The evidence of discrimination in the City s recruitment practices, and the effects of that discrimination, are discussed in more detail in the brief of Intervenors-Appellees-Cross-Appellants Janet Caldero et al. 1

13 doubts that the City would be able to satisfy its rebuttal burden by showing that the challenged exams identified the best candidates to serve in these posts. Moreover, an equally valid, less discriminatory alternative was available: Civil service law permitted the City to make provisional hires without reliance upon the challenged exams, and blacks and Hispanics held a larger percentage of these provisional jobs and performed equally as well as their permanent counterparts, although they did not receive the same job security or benefits. Faced with ample evidence of a Title VII violation, the City agreed to a settlement in 1999 that provided permanent positions and retroactive seniority to, among others, blacks and Hispanics harmed by the discriminatory tests, all of whom had already been serving successfully as provisional employees. A decade later, this carefully circumscribed remedy for significant discrimination remains in limbo. When incumbent employees protested, the United States, with new counsel assigned after a change in presidential administration, shifted its position and announced that it would not defend the settlement fully. Because of this change in position, the Arroyo Intervenors a group of black and Hispanic beneficiaries of the settlement intervened to protect their own rights and to preserve Congress s intent that voluntary employer compliance, as through a settlement agreement, should be the preferred means of achieving the objectives of Title VII. Local No. 93, Int l Ass n of Firefighters v. City of Cleveland, 478 U.S. 501, 515 (1986). 2

14 JURISDICTIONAL STATEMENT This is an appeal from a judgment in three consolidated cases in the United States District Court for the Eastern District of New York: United States v. New York City Board of Education, Case No. 1:96-cv FB (E.D.N.Y.); Brennan v. Ashcroft, Case No. 1:02-cv FB (E.D.N.Y.); and Miranda v. New York City Department of Education, Case No. 1:06-cv FB (E.D.N.Y.). The district court (Judge Frederic Block) had subject-matter jurisdiction over the first action pursuant to 28 U.S.C. 1331, 1345, and 42 U.S.C. 2000e-6(b), and had subjectmatter jurisdiction over the second and third actions pursuant to 28 U.S.C. 1331, 1343, and 42 U.S.C. 2000e-5(f)(3). The district court s final judgment in the consolidated actions was entered on August 26, SPA (Judgment). 2 All parties to this action except the Arroyo Intervenors filed timely notices of appeal or cross-appeal. 3 This Court has jurisdiction pursuant to 28 U.S.C Citations to A are to the deferred Joint Appendix filed pursuant to Fed. R. App. P. 30(c). Citations to SPA are to the deferred Special Appendix. 3 A 4221 (Brennan Notice of Appeal); A (U.S. Notice of Appeal); A (City Notice of Appeal); A (Caldero Notice of Cross-Appeal); A 4427 (Brennan Notice of Appeal); A 4445 (Miranda Notice of Appeal); Fed. R. App. P. 4(a)(1)(B). The City subsequently withdrew its cross-appeal. See 2d Cir. Docket No cv (L). On January 23, 2009, the Court consolidated the appeals and cross-appeals. See id. 3

15 STATEMENT OF ISSUES PERTINENT TO THE ARROYO INTERVENORS I. The district court properly held that race-conscious remedies provided to the Arroyo Intervenors through the City s settlement of the United States s employment discrimination lawsuit did not violate Title VII, because there is no genuine dispute of fact that (1) the challenged civil service exams produced gross racial disparities, and black and Hispanic employees are manifestly underrepresented as Custodians and Custodian Engineers, and (2) the limited remedies to the Arroyo Intervenors did not establish racial quotas or otherwise unnecessarily trammel the interests of incumbent employees. II. The district court properly held that the race-conscious remedies provided to the Arroyo Intervenors did not violate the Fourteenth Amendment because (1) uncontested evidence of a prima facie Title VII disparate impact violation in the challenged civil service exams provides a strong basis in evidence for the City s conclusion that it had a compelling interest in remedying its prior discrimination, and (2) the relief is narrowly tailored to serve that compelling interest. III. The district court properly upheld the remedies provided to three of the Arroyo Intervenors, whom the Brennan Intervenors contended were not Hispanic, because it recognized that there was uncontested evidence that each of the three had a parent or grandparent who was born in Mexico or Puerto Rico. 4

16 STATEMENT OF THE CASE At issue in these consolidated appeals is the lawfulness of permanent appointments and competitive seniority benefits provided in four paragraphs of a 1999 settlement agreement that resolved the United States s Title VII lawsuit against the New York City Board of Education. 4 The United States initiated this lawsuit against the Board in January A (U.S. Compl.). The complaint alleged that the City s recruiting and hiring practices for Custodians and Custodian Engineers in New York City public schools amounted to unlawful race and sex discrimination against minorities and women in violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e-2). Id. The United States s Title VII claims were resolved in a negotiated settlement agreement (the Agreement ) that the parties filed in the district court in February A (Agreement). As pertinent to these consolidated appeals, the Agreement granted permanent appointments and retroactive seniority to a group of fifty-nine black, Hispanic, and female individuals (the Offerees ) who had been employed as provisional Custodians and Custodian Engineers as of A , (Agreement 4-6, & app. A); SPA 5, 26 (Order 5, 26). 4 The United States s 1996 complaint named other New York agencies and officials as defendants. A (U.S. Compl.). This brief collectively refers to the defendants in the 1996 action as the Board or the City. 5

17 The district court approved the Agreement and entered it as a consent judgment in February 2000; at the same time, it denied a motion to intervene by several white male incumbent employees who objected to the Agreement. A (Order). The objectors appealed, and this Court vacated the district court s order, permitted the objectors to intervene, and remanded for reconsideration. Brennan v. N.Y. City Bd. of Educ., 260 F.3d 123, (2d Cir. 2001). On remand, the objectors intervened as the Brennan Intervenors. A (Order 6-8). Along with two other white male incumbent employees, they also initiated a second action against officials and agencies of the United States and the City of New York, alleging that the settlement of the first action violated Title VII and the Equal Protection Clause of the Fourteenth Amendment. A (Brennan Compl.). Another incumbent employee initiated a third action raising similar challenges. A (Miranda Compl.). The district court consolidated all three actions. A 719 (Order); A 3995 (Order). In March 2002, the parties consented to the district court s approval of all provisions of the Agreement except paragraphs 13 to 16, which deal with the permanent appointments and retroactive seniority provided to the Offerees. A 575 (Order); A (Agreement 13-16). During post-remand discovery, after the United States indicated that it would not defend all of the relief provided by the Agreement, the district court permitted 6

18 two groups of Offerees to intervene. A (Order); A 779 (Minute Entry); A 783 (Order); A (Order). The Caldero Intervenors are twenty-five Offerees who (with one exception) did not take a challenged exam. The Arroyo Intervenors are ten Offerees who took one or more of the challenged exams. 5 After cross-motions for summary judgment and two fact hearings, the district court assessed the lawfulness of the challenged provisions of the Agreement in light of the Brennan Intervenors Title VII and Fourteenth Amendment claims. As relevant to the Arroyo Intervenors, the court held that: Each of the Arroyo Intervenors was a member of a racial or ethnic minority group, SPA 31-32, (Order 31-32, 41-42); The permanent appointments received by the Arroyo Intervenors were lawful under Title VII and the Fourteenth Amendment, SPA 42-50, 52-59, 64-75, (Order 42-50, 52-59, 64-75, 88-90); SPA , (Order 5-20, 25-26); The retroactive seniority received by the Arroyo Intervenors was lawful under Title VII and the Fourteenth Amendment to the extent that it affected eligibility for school transfers and temporary care assignments, SPA 42-50, 52-59, 64-75, (Order 42-50, 52-59, 64-75, 88-90); SPA (Order 5-20); SPA (Judgment); and The retroactive seniority received by the Arroyo Intervenors would be unlawful under Title VII and the Fourteenth Amendment if it affected the order of any employee layoffs in the future, unless it could be established that the seniority dates constituted make-whole relief to actual victims of 5 The Arroyo Intervenors are Pedro Arroyo, Jose Casado, Celestino Fernandez, Kevin LaFaye, Steven Lopez, Anibal Maldonado, James Martinez, Wilbert McGraw, Silvia Ortega de Green, and Nicholas Pantelides. A 783 (Order); A (Order). 7

19 employment discrimination, SPA 59-64, (Order 59-64, 75-78); SPA (Judgment). As to the fourth of these holdings, the district court ultimately did not adjudicate the Arroyo Intervenors assertion that each received make-whole relief as an actual victim of discrimination, because all parties agreed to stipulated layoff-seniority dates for the Arroyo Intervenors, thereby resolving the lawfulness of their seniority relief for layoff purposes. A (Order). 6 The district court issued a final judgment summarizing its rulings on August 18, SPA (Judgment). Each party except the Arroyo Intervenors filed a notice of appeal or cross-appeal. STATEMENT OF THE FACTS 1. The Custodian and Custodian Engineer workforce. The Board of Education employs School Custodians and Custodian Engineers to oversee the operation, maintenance, repair, and custodial upkeep of the City s public schools. A 4350 (Lonergan Decl. 3). Each Custodian and Custodian Engineer supervises a cleaning, repair, and mechanical staff to manage the daily physical operation of each school. Id. Custodians and Custodian Engineers can be hired either as permanent or provisional employees. Permanent Custodians and Custodian Engineers are 6 The district court did make determinations as to the layoff-seniority date for eight other Offerees. SPA (Order 11-17). 8

20 selected based on their scores on a written civil service exam. SPA 9 (Order 9). Applicants who pass the exam and meet other eligibility requirements are ranked and placed on a civil service list (an eligible list ) for possible appointment to permanent positions. Id.; N.Y. Civ. Serv. Law 56, 61(1) (McKinney 2008); N.Y. Comp. Codes R. & Regs. tit. 4, 3.6, 4.1 (2009). Once appointed, permanent employees have civil service rights and accrue seniority, which is used to determine pension benefits and is a factor in other employment benefits. A 222 (Lonergan Decl. 17). Provisional employees are hired when vacancies exist but there is no current civil service list from which the Board may make permanent appointments. See N.Y. Civ. Serv. Law 65(1) (McKinney 2008). The qualifications needed to be selected as a provisional Custodians and Custodian Engineers are the same as for permanent hiring, and provisionals receive the same training and orientation as permanent employees. A (Lonergan Decl. 6, 12). However, provisionals have no civil service rights; therefore they do not accrue seniority, can be moved between school assignments at the Board s discretion, and may be fired at any time regardless of performance. A 222 (Lonergan Decl ). Blacks and Hispanics have traditionally been, and continue to be, dramatically underrepresented as permanent Custodians and Custodian Engineers. As of 1993, blacks and Hispanics held less than 8% of permanent positions, 9

21 SPA 4-5 (Order 4-5), but made up nearly 45% of the qualified labor force. A 563 (Ashenfelter Decl. tbl. 8). 7 There is considerable record evidence that Custodian and Custodian Engineer positions have historically been racially-closed jobs and that ongoing racial harassment persists. See, e.g., A (Stein Report 28); A (Brooks Decl. 4, 6); A (Coleman Decl. 5-6); A , (A. Pantelides Dep. Tr , 81-83). 2. Litigation of the United States s employment discrimination claims. After several years of investigating the Board s employment practices, the United States sued the Board in January 1996 for discrimination in recruitment and hiring for permanent Custodian and Custodian Engineer positions. A (U.S. Compl.). The United States alleged violations of Title VII through a pattern or practice of intentional discrimination, as well as the use of civil service examinations and recruiting practices that had an unjustified disparate impact on the basis of race. 8 A (U.S. Compl. 8-19). 7 The Brennan Intervenors challenged this qualified-labor-force calculation below, A 3468 (Brennan Resp. to Arroyo Statement of Facts 6), but for the reasons explained infra Part II.A.2, their objection does not create a genuine dispute of material fact. 8 In the litigation below, the parties and the district court referred to the United States s claim that the civil service exams had a discriminatory adverse impact on blacks and Hispanics as the testing claim, and referred to the United States s claim that the City s recruitment practices unlawfully excluded minorities and women as the recruiting claim. SPA 8-9 (Order 8-9). Because the Arroyo 10

22 Title VII prohibits both intentional discrimination ( disparate treatment ) as well as employment practices that have a disparate impact on protected groups and are not otherwise justified. 42 U.S.C. 2000e-2(a), (k); Griggs v. Duke Power Co., 401 U.S. 424, (1971). The disparate impact approach is premised on recognition that some employment practices, adopted without a deliberately discriminatory motive, may in operation be functionally equivalent to intentional discrimination. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 987 (1988). Where a prima facie case of a disparate impact violation is established based on evidence that an employment practice causes a significant adverse impact, use of that employment practice violates Title VII unless (1) the practice is job-related and consistent with business necessity, and (2) there are no equally valid, less-discriminatory alternatives. 42 U.S.C. 2000e-2(k)(1)(A). As pertinent to the Arroyo Intervenors, the United States challenged three civil service exams that the Board administered to select Custodians and Custodian Engineers: Exam 5040, administered in 1985 for Custodian hiring; Exam 8206, administered in 1989 for Custodian Engineer hiring; and Exam 1074, administered in 1993 for Custodian hiring. SPA (Order 10-11). Each of the three challenged exams was a written, multiple-choice exam with the passing score pre- Intervenors each took one or more of the challenged civil service exams, this brief focuses on the claims and evidence relating to discrimination in those exams. 11

23 set at 70%. SPA 9 (Order 9); A (Notice of Exam No. 5040); A (Notice of Exam No. 8206); A (Notice of Exam 1074). The challenged exams produced gross and statistically-significant disparities as to black and Hispanic test-takers. SPA 11-12, 32-33, (Order 11-12, 32-33, 49-50); SPA (Order 5-20). All parties conceded the fact of adverse impact on black test-takers in all three challenged exams, and on Hispanic testtakers in two of the challenged exams. SPA 11-12, 32, (Order 11-12, 32, 49-50). The district court held that there was a dispute of fact precluding summary judgment regarding the adverse impact of the remaining exam on Hispanic testtakers (Exam 8206). SPA 11-12, 33, 49 (Order 11-12, 33, 49). After an evidentiary hearing, the district court held that Exam 8206 did have an adverse impact on Hispanic test-takers, and the Brennan Intervenors have not appealed that finding of fact. SPA (Order 5-20); Brennan Br. 47. During discovery regarding the United States s testing claims, substantial evidence emerged that the challenged exams were not job-related and that less discriminatory alternatives were available. 9 The United States s experts concluded that the challenged exams were not job-related because the Board s procedures for 9 The Brennan Intervenors contested the evidence of non-job-relatedness and less discriminatory alternatives. A 3480 (Brennan Resp. to Arroyo Statement of Facts , 130). For the reasons explained infra Part III.A.2, their objection has no bearing on the relevant questions of law. 12

24 developing the exams fell short of professional standards, and the material tested on the challenged exams did not accurately measure the knowledge, skills, and abilities needed to predict successful performance on the job. A (Siskin & Cupingood, Review of Statistical Methodology 1-13); A , 2019, 2029, (Pulakos & Schmitt, Analysis of New York City s School Custodian and School Custodian Engineer Examinations 1-9, 24, 34, 50-52); A , (Pulakos & Schmitt, Supplemental Report 1-5, 15-31). The United States s experts further concluded that provisional hiring was a less discriminatory alternative to the Board s civil service exam process. Provisional hiring resulted in a greater hire rate for black and Hispanic applicants only 5.5% of permanent Custodian hires from the challenged exams were black or Hispanic, compared to 20.4% of provisional Custodian hires during the comparable time period. Similarly, only 4.0% of permanent Custodian Engineer hires, compared to 11.5% of provisional Custodian Engineer hires, were black or Hispanic during the same time period. A , (Siskin & Cupingood, Review of Statistical Methodology & exs. 13A, 13B); A (Siskin & Cupingood, Provisional Hiring as an Alternative Selection Device 1-4); see also A (Pulakos & Schmitt, Supplemental Report 31-32). The United States s experts also found that the performance of provisional employees on the job was statistically indistinguishable from that of permanent employees. 13

25 A (Siskin & Cupingood, Provisional Hiring as an Alternative Selection Device 3-4). 3. The 1999 settlement agreement. After three years of vigorous litigation, the United States and the Board agreed to resolve the discrimination claims in a negotiated settlement agreement submitted to the district court in February SPA 15 (Order 15). As relevant to these consolidated appeals, the Agreement granted permanent appointments and retroactive seniority to a group of fifty-nine Offerees who had been performing successfully as provisional Custodians and Custodian Engineers. 10 See SPA (Order 15-16); A (Agreement 4-6, 12-16). The Agreement did not direct Defendants to create any new permanent positions, but rather required them to appoint the Offerees to fill existing vacancies. A 513 (U.S. Mem. Supp. Settlement 42). For each Offeree, the Agreement included a specific determination as to his or her date of retroactive seniority based on whether or not that individual took one of the challenged exams. Each of the Arroyo Intervenors took a challenged exam and received retroactive seniority dates as follows: 10 All of the Offerees began employment with the Board as provisional employees. SPA 16 (Order 16). Most were still provisional as of the date of the Agreement, but some had previously acquired permanent status. Id. Two of the ten Arroyo Intervenors Anibal Maldonado and Nicholas Pantelides had attained permanent status prior to the Agreement, and the other Arroyo Intervenors received permanent status pursuant to the Agreement. A 4159 (Joint Letter 3). 14

26 Six of the ten Arroyo Intervenors Jose Casado, Celestino Fernandez, Anibal Maldonado, James Martinez, Silvia Ortega de Green, and Nicholas Pantelides received retroactive seniority pursuant to 15(b) of the Agreement, which provides that Custodian employees would receive the earlier of the date he or she was hired provisionally as a Custodian, or the median hire date for the challenged Custodian exam that he or she took. A (Agreement 15(b)). The earlier of those dates for the six Arroyo Intervenors in question was their provisional hire date, which accordingly became their retroactive seniority date under the Agreement. A , (Agreement 15(b) & app. A). Three of the Arroyo Intervenors Pedro Arroyo, Kevin LaFaye, and Wilbert McGraw received retroactive seniority pursuant to 16(b) of the Agreement, which provides that certain provisional Custodian Engineers would receive seniority to April 1990, which reflected the earliest date for provisional Custodian Engineer hiring in a sample of provisional hires that was produced during discovery. A , (Agreement 16(b) & app. A); A 93 (Calendar Entry for Disc. Conf., Apr. 9, 1997). The remaining Arroyo Intervenor, Steven Lopez, received retroactive seniority to his provisional hire date as a Custodian Engineer pursuant to 15(a) of the Agreement. Paragraph 15(a) provides that [i]f the Offeree did not take any of the Challenged Examinations that correspond to his or her Current Job Title, then 15

27 his or her retroactive seniority date shall be the date he or she was hired provisionally in his or her Current Job Title. A 108 (Agreement 15(a)) (emphasis added). Although he took both of the Custodian exams (Exam 5040 and Exam 1074), Lopez was employed as a provisional Custodian Engineer at the time of the Agreement. A (Agreement app. A). 4. The Brennan Intervenors challenge to the Agreement. As noted in the Statement of the Case, supra p. 6, a group of objectors to the Agreement (the Brennan Intervenors) were permitted to intervene after an appeal to, and remand by, this Court. Brennan, 260 F.3d at The Brennan Intervenors argued that the permanent status and retroactive seniority that the Offerees received in paragraphs 13 to 16 of the Agreement were improper race-conscious remedies in violation of Title VII and the Equal Protection Clause. SPA 16, (Order 16, 31-39). The Brennan Intervenors contended that the permanent appointments and seniority awards affected three interests they held in their own relative seniority dates: the ability to obtain transfers to new schools; the ability to receive temporary care assignments; and the order of discharge in the event of possible layoffs. SPA (Order 18-23). 5. School transfers. The Board periodically gives permanent Custodians and Custodian Engineers the opportunity to bid for transfer to open school 16

28 buildings. SPA 18 (Order 18). Such transfers may result in a salary increase because larger schools provide a higher salary. Id. Under the Collective Bargaining Agreement between the Board and the custodians union, transfers are determined based on a combination of performance ratings and seniority. SPA 19 (Order 19). Permanent employees are assigned a seniority band based on their years of experience, and may apply for schools of a certain size based on their seniority band. Id. If more than one employee within the same seniority band applies for transfer to an open school, the candidate with the highest average performance rating receives the transfer. Id. If two or more candidates have equivalent performance ratings (defined as within one-quarter of a point of each other, on a five-point rating scale), the candidate with more seniority receives the transfer unless the school s principal vetoes the candidate or the candidate has received a low performance rating from his or her regional manager. Id. 6. Temporary care assignments. When there is a shortage of personnel and the Board is unable to assign a Custodian or Custodian Engineer to every school that needs one, the Board staffs those vacancies using a system called temporary care assignments ( TCA ). SPA 20 (Order 20); A 4354 (Lonergan Decl. 15). Under the TCA program, a permanent Custodian or Custodian Engineer who is already assigned to one school takes on temporary responsibility for a second 17

29 school and earns a portion of the salary for that school, but is not required to work any additional weekly hours. SPA 20 (Order 20). The rules governing TCAs are not included in the Collective Bargaining Agreement, and placement on the TCA list is not a matter of contractual right. Id. All permanent Custodians and Custodian Engineers who have completed their one-year probationary period are eligible for TCAs within the borough in which they currently work. Id. Eligible employees are placed on the appropriate borough list in the order that they complete their probationary period. Id. When a TCA becomes available, the Board offers it to the employee at the top of the applicable list. On completion of the assignment, the employee returns to the bottom of the applicable list. SPA (Order 20-21). The record is unclear regarding whether the award of retroactive seniority affected the Offerees initial placement on the TCA lists after implementation of the Agreement. SPA 21 & n.22 (Order 21 & n.22). The district court treated the contradictory evidence on this point as falling short of a dispute of material fact, because the effect on the Brennan Intervenors was, at most, nominal. SPA 21, 58-59, 75 (Order 21, 58-59, 75). 7. Seniority as a factor in the event of layoffs. Layoffs of custodial employees are to be made in the inverse order of original appointment on a permanent basis. N.Y. Civ. Serv. Law 80(1) (McKinney 2008). No layoffs 18

30 have occurred, and as noted in the Statement of the Case, supra p. 8, the effect of the Agreement on any possible future layoffs is not at issue in this appeal with regard to the Arroyo Intervenors, because the parties stipulated in the district court to layoff-seniority dates for the Arroyo Intervenors. A (Order). 8. Intervention by the Arroyo Intervenors and Caldero Intervenors. During the course of the post-remand litigation of the Brennan Intervenors challenge, the United States modified its position several times with regard to the lawfulness of the Agreement s provisions. In April 2002, the attorneys for the United States who originally negotiated the Agreement and submitted it to the district court withdrew their appearances and were replaced with new counsel. A (Notice of Withdrawal of Counsel); A (Notice of Appearances of Counsel). Under new counsel, and based on no new evidence, the United States decided it would no longer defend the Agreement s remedies for Offerees who had not taken one of the challenged exams. A 578 (U.S. Mem. Opp. Mot. for Prelim. Inj. 2 & n.2). When they became aware of this change in position, a group of the affected Offerees the Caldero Intervenors intervened to protect their interests. A (Order). The United States changed its position a second time in a September 2003 response to a discovery request, and indicated that it would no longer defend the lawfulness of retroactive seniority provided to an additional group of Offerees, all of whom were previously included in the list of Offerees that the United States had 19

31 contended, in April 2002, were lawfully entitled to relief. A , (U.S. Resps. to Pl.-Intervenors 1st Contention Interrogs. No. 1, 3(a)-(d), & attached relief chart). Each of the Arroyo Intervenors is one of the group of Offerees whose remedies the United States indicated that it was no longer defending. The district court granted intervention to permit the Arroyo Intervenors to defend the lawfulness of their relief under the Agreement. A 779 (Minute Entry); A (Order). 9. The district court s judgment. After cross-motions for summary judgment and two fact hearings, the district court held in pertinent part that the Arroyo Intervenors receipt of permanent appointments and retroactive seniority was lawful under both Title VII and the Fourteenth Amendment for all non-layoff purposes. SPA 1-91 (Order); SPA (Order); SPA (Order). The district court issued a final judgment summarizing its rulings on August 18, SPA (Judgment). These consolidated appeals followed. SUMMARY OF THE ARGUMENT A public employer may lawfully adopt carefully circumscribed remedies in voluntary settlement of a Title VII lawsuit where, as here, that employer is confronted with strong evidence that its prior hiring decisions were tainted by racial discrimination. 20

32 On appeal, the Brennan Intervenors do not contest that the challenged civil service exams produced gross racial disparities sufficient to demonstrate a prima facie case of a Title VII disparate impact violation. Rather, they argue that such evidence provides inadequate support for race-conscious remedial measures under Title VII and the Fourteenth Amendment. Their argument is incorrect. The race-conscious provisions of the Agreement are valid under Title VII because there is no dispute of fact that black and Hispanic employees were manifestly underrepresented in the Custodian and Custodian Engineer workforce and had long been so in the past. In addition, the Agreement did not unnecessarily trammel the interests of incumbent employees because it was a focused, one-time remedy that did not create an absolute bar to any employee s advancement. The Brennan Intervenors contention that Title VII only permits a settlement agreement to include make-whole relief to actual victims of discrimination is groundless. The race-conscious provisions of the Agreement are also valid under the Fourteenth Amendment because they are narrowly tailored to meet a compelling state interest. The uncontested evidence of a prima facie case of a Title VII disparate impact violation in the challenged civil service exams provides a strong basis in evidence that race-conscious relief was necessary to remedy past discrimination. Moreover, additional evidence supports the City s compelling remedial interest, including expert reports indicating that it would be difficult, if 21

33 not impossible, for the City to defend the challenged exams as valid means to select highly qualified Custodians and Custodian Engineers. The race-conscious relief was narrowly tailored to serve the City s compelling interest because it was a limited, one-time remedy for a small group of individuals who were already successfully performing the same job as provisional employees. Finally, each of the Arroyo Intervenors was properly included in the settlement. The district court properly rejected the Brennan Intervenors contention that three of the Arroyo Intervenors were not Hispanic. As the district court recognized, there was uncontested evidence that each of the three had a parent or grandparent who was born in Mexico or Puerto Rico, which is sufficient to establish ethnicity under settled authority and federal guidelines. The Brennan Intervenors seek to prohibit public employers from ever taking voluntary steps to redress racial discrimination in their workforces unless the employer concedes past intentional discrimination. This principle would defeat Congress s intent to encourage employers to comply voluntarily with Title VII, and would contravene the Supreme Court s clear pronouncement that state actors are not required to convict themselves of discrimination before taking action to avoid or remedy a violation. Congress and the Supreme Court do not share the Brennan Intervenors cramped view of the remedies available in settlement of a Title VII lawsuit, and this Court should decline to adopt it as well. 22

34 ARGUMENT I. Standard of Review. The standard of review of a district court s decision on cross-motions for summary judgment is de novo. Nat l Awareness Found. v. Abrams, 50 F.3d 1159, 1164 (2d Cir. 1995). II. The permanent appointments and retroactive seniority received by the Arroyo Intervenors are lawful under Title VII. Applying the standard set forth by the Supreme Court in Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, (1987), and United Steelworkers of America v. Weber, 443 U.S. 193, 197, 208 (1979), the district court held that the Arroyo Intervenors permanent appointments and retroactive seniority dates for the purposes of school transfers and temporary care assignments were lawful under Title VII because the Agreement (1) is justified by a manifest imbalance in a traditionally segregated job category; (2) is intended to attain, not maintain, a balanced work force; and (3) does not unnecessarily trammel the interests of white employees. SPA 42-50, (Order 42-50, 55-59); SPA 116 (Order 20); SPA 145 (Order 19); SPA (Judgment). The Brennan Intervenors have only appealed the district court s holdings on the manifest imbalance and unnecessary trammeling factors. Brennan Br Because the Brennan Intervenors do not meet their burden to demonstrate a 23

35 genuine dispute of material fact regarding either factor, see Johnson, 480 U.S. at , the Court should affirm the district court s Title VII holdings. The Brennan Intervenors argue in the alternative that it was improper for the district court to apply the Supreme Court s holdings in Johnson and Weber to the race-conscious provisions of the Agreement. Although Johnson and Weber arose in the context of an employer s voluntary affirmative action plan, the framework established in those cases applies to the race-conscious remedies contained in the Agreement. See Local No. 93, 478 U.S. at 518; Kirkland v. N.Y. State Dep t of Corr. Servs., 711 F.2d 1117, (2d Cir. 1983). Accordingly, the district court also correctly held that Title VII does not prohibit an employer from providing race-conscious remedies pursuant to a settlement agreement that may extend beyond make-whole relief to actual victims of discrimination. SPA (Order 52-55). A. There is no dispute of material fact regarding the existence of a manifest racial imbalance in the Custodian and Custodian Engineer workforces. The Brennan Intervenors argue that the district court erred in finding a manifest imbalance in the Custodian and Custodian Engineer workforces. See Brennan Br Their argument is without merit. Under Johnson and Weber, race-conscious remedies provided by the Agreement are justified by the existence of a manifest imbalance that reflect[s] underrepresentation of black and 24

36 Hispanic employees in Custodian and Custodian Engineer positions. Johnson, 480 U.S. at 631 (quoting Weber, 443 U.S. at 197). 1. The district court properly relied on evidence of discrimination in the challenged exams. The district court based its manifest imbalance ruling on evidence of a prima facie case of a Title VII disparate impact violation in the challenged exams. SPA (Order 44-50); SPA 116, (Order 20, 28-29). A prima facie case is established by statistical evidence that reveals a disparity so great that it cannot be accounted for by chance. Waisome v. Port Auth. of N.Y. & N.J., 948 F.2d 1370, 1375 (2d Cir. 1991). One method this Court uses to evaluate prima facie disparities is the four-fifths test, which provides that evidence of a selection rate for any minority group that is less than four-fifths of the selection rate for whites will be considered evidence of adverse impact. Id. at ; 29 C.F.R (D); SPA 49 (Order 49). All three of the challenged exams produced large and statistically-significant disparities between black and Hispanic test-takers and white test-takers sufficient to establish a prima facie case. SPA 11-12, 33, 50 (Order 11-12, 33, 50); SPA (Order 5-20). On appeal, the Brennan Intervenors do not contest that each of the challenged exams produced gross disparities that establish a prima facie case of unlawful discrimination against black and Hispanic applicants. The Brennan Intervenors instead argue that this evidence of discrimination does not meet the 25